P. v.
Filed 2/27/13 P. v. Paris CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
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as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
PAUL ERIC PARIS,
Defendant
and Appellant.
E056096
(Super.Ct.No. SWF1101895)
OPINION
APPEAL from the Superior
Court of
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed.
John F. Schuck, under appointment by
the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, Melissa Mandel, and Meredith S. White, Deputy Attorneys
General, for Plaintiff and Respondent.
Defendant and appellant Paul Eric
Paris appeals following a guilty plea, asserting that the trial court abused
its discretion in imposing the upper term on the principal count and that he is
entitled, as a matter of equal protection, to presentence conduct credits at
the two-for-two rate provided for in the current version of Penal Code section
4019.
We find no abuse of discretion, and
we reject defendant’s equal protection argument.
PROCEDURAL HISTORY
Defendant was charged with willful
infliction of corporal injury on a spouse or cohabitant, resulting in traumatic
condition (Pen. Code, § 273.5,
subd. (a); count 1);
name="_ftnref1" title="">[1] evading a peace officer (Veh. Code, § 2800.2; count 2); and
prior. (§ 667.5, subd. (b).)
A jury trial commenced on January 23, 2012. Following the testimony of the victim, Jane
Doe, defendant informed his attorney that he wished to plead guilty. Despite failing to reach a
defendant chose to plead guilty on all counts and to admit the prison
prior.
The court referred the case to the
probation department for a report and set a sentencing date. At the sentencing
hearing, the court sentenced defendant to the upper term of four years on
count 1, a consecutive term of eight months on count 2, and a consecutive
one-year term for the prison prior. The
court imposed a concurrent term of eight months on count 3 and stayed it
pursuant to section 654. The court
awarded presentence credits and ordered victim restitution as determined by the
probation department. It imposed
appropriate fines, assessments and fees.
Defendant filed a timely
certificate of probable cause to challenge the sentence as violative of his
FACTS
On August 10, 2011, defendant was living with Jane Doe, his
fiancée. They went to the home of a
neighbor, Curtis Hartwell. They had a
drink or two while visiting with Hartwell and then returned home. Doe and defendant drank most of a bottle of
vodka and two quarts of beer while playing dominoes. An argument started when defendant wanted to
go somewhere but Doe wanted to stay home.
The argument escalated, and defendant sought to restrain Doe from
leaving. He put his hands on her and
perhaps hit her. Doe eventually ran to
Hartwell’s house. She told Hartwell that
defendant had hit her and asked if she could come in.
A few minutes later, defendant came
to Hartwell’s house and asked if he could come in. Defendant was initially conciliatory toward
Doe. He brought a burrito and tried to
get her to eat. When she refused,
defendant became enraged and began choking her.
Hartwell pulled defendant off her, and Doe ran into the bedroom and
closed the door. Defendant entered the
bedroom and grabbed Doe. She fell to the
floor, and he began kicking her and stomping her in the back.
At some point during the
altercation, Hartwell called 911. He
also intervened again and got defendant away from Doe.
When the police arrived, Doe,
defendant and Hartwell were all standing outside Hartwell’s house. Hartwell told the officer that defendant had
“jumped†Doe and slapped her and “choked her out.†Defendant walked away,
ignoring the officer’s order to stop. He
got into a car and drove away. Another
police unit pursued defendant with overhead lights illuminated, but defendant
did not stop, running four stop signs during the pursuit. Defendant returned to the street on which
Hartwell lived and turned the vehicle toward Hartwell, Doe and the
officer. He accelerated toward them, but
lost control of the vehicle, hit the curb and then collided with a brick
planter. When defendant was taken into
custody, officers found a large kitchen knife in his possession.
As a result of the altercation, Doe
had bruises on her neck, arms and back.
LEGAL ANALYSIS
1.
IMPOSITION OF THE UPPER TERM ON COUNT 1 WAS NOT AN
ABUSE OF DISCRETION
Defendant contends that the trial
court abused its discretion in imposing the upper term of four years on count
1. He contends that the aggravating
factors identified in the probation report are either inapplicable or
unsupported by the evidence, and that the court failed to take into account
defendant’s expression of remorse as a mitigating factor.
The Attorney General first contends
that defendant forfeited his right to challenge the court’s exercise of
sentencing discretion because he did not object at the sentencing hearing to
the factors the court relied upon. Such
a claim may be forfeited by failure to object, but only “when the trial court
‘clearly apprise[s]’ the parties ‘of the sentence the court intends to impose
and the reasons that support any discretionary choices’ [citation], and gives
the parties a chance to seek ‘clarification or change’ [citation] by objecting
to errors in the sentence. The parties
are given an adequate opportunity to seek such clarifications or changes if, at
any time during the sentencing
hearing, the trial court describes the sentence it intends to impose and the
reasons for the sentence, and the court thereafter considers the objections of
the parties before the actual sentencing.â€
(People v. Gonzalez (2003) 31
Cal.4th 745, 752.) “It is only if the
trial court fails to give the parties any meaningful opportunity to object that
the Scott[
name="_ftnref2" title="">[2]]
rule becomes inapplicable.†(
Here, the trial court did not announce its tentative sentencing choice
at the outset of the hearing or allow further argument once it did announce its
intention to impose the upper term as recommended by the probation report.
Consequently, defendant did not forfeit this claim for appeal.
Nevertheless, the claim is without
merit. Subject to certain prohibitions
not pertinent here, trial courts have broad discretion in identifying and
applying factors in aggravation. An
exercise of legal discretion which is grounded on reasoned judgment and guided
by the applicable legal principles and policies must be upheld on appeal. An abuse of discretion occurs if the court
relies upon circumstances that are not relevant to the decision or otherwise
constitute an improper basis for decision.
(People v. Sandoval (2007) 41
Cal.4th 825, 847.)
“‘The burden is on the party
attacking the sentence to clearly show that the sentencing decision was
In the absence of such a showing, the trial court is presumed to have
acted to achieve legitimate sentencing objectives, and its discretionary
determination to impose a particular sentence will not be set aside on
review.’ [Citation.]†(People
v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) Defendant has not met that burden. An aggravating circumstance is a fact “that
makes the offense ‘distinctively worse than the ordinary.’ [Citations.]â€
(People v. Black (2007) 41
Cal.4th 799, 817.) Even if we assume
that defendant is correct that several of the factors in aggravation listed in
the probation report were inappropriate under the specific circumstances of
this case, it is by no means an abuse of discretion to consider defendant’s
abuse of Jane Doe distinctively worse than ordinary instances of spousal or
cohabitant abuse. Under section 273.5,
subdivision (a), the element of willful infliction of corporal injury resulting
in a traumatic condition is satisfied when a “direct application of force†by
the defendant on the victim causes injury.
(People v. Jackson (2000) 77
Cal.App.4th 574, 577-578.) A single slap to the face resulting in
even a minor injury suffices. (See
133, 137-138 [Fourth Dist., Div. Two].)
Here, defendant choked Doe, resulting in bruising to her neck, and
kicked and stomped her repeatedly, resulting in bruising to her arms and
back. This goes far beyond what is
necessary to constitute a violation of section 273.5, subdivision (a). A single valid aggravating factor may be
deemed sufficient to outweigh any potentially mitigating factor. (People
v. Osband (1996) 13 Cal.4th 622, 728.)
Accordingly, imposition of the upper term on the basis of that
aggravating factor was not an abuse of discretion.
Defendant also contends that the
court abused its discretion by failing to consider mitigating factors,
including defendant’s “dire financial and physical problems,†his intoxication
at the time of the offenses and his remorse, as expressed by his decision to
plead guilty after seeing how upset Jane Doe was by the events and by having to
testify. However, these potentially
mitigating factors were brought to the court’s attention, and in the absence of
any explicit statement by the court to the contrary, it is assumed that the
court properly exercised its legal duty to consider all possible mitigating and
aggravating factors in determining the appropriate sentence. (People
v. Oberreuter (1988) 204 Cal.App.3d 884, 888;
v. Kelley (1997) 52 Cal.App.4th 568, 582.)
Defendant has failed to persuade us that it was an abuse of discretion
to give greater weight to the aggravated nature of the offense in count 1 than
to any or all of these mitigating factors.
2.
APPLYING SECTION 4019 SOLELY TO DEFENDANTS WHOSE
OFFENSES WERE COMMITTED AFTER OCTOBER 1, 2011 DOES NOT VIOLATE EQUAL PROTECTION
PRINCIPLES
A defendant is entitled to actual
custody credit for “all days of custody†in county jail and residential
treatment facilities, including partial days.
(§ 2900.5, subd. (a); People
v. Smith (1989) 211 Cal.App.3d 523, 526.)
Section 4019 provides that a criminal defendant may earn additional
presentence credit against his or her sentence for performing assigned labor
(§ 4019, subd. (b)), and for complying with applicable rules and
regulations of the local facility (§ 4019, subd. (c)). These presentence credits are collectively
referred to as conduct credits. (
939.)
Section 4019 has been amended
multiple times. Before January 25, 2010,
defendants were entitled to one-for-two conduct credits, which is two days for
every four days of actual time served in presentence custody. (Former § 4019, subd. (f), as amended by
Stats. 1982, ch. 1234, § 7, pp. 4553, 4554.) Effective January 25, 2010, the Legislature
amended section 4019 to provide that prisoners, with some exceptions, earned
one-for-one conduct credits, which is two days of conduct credit for every two days
in custody. (Stats. 2009, 3d Ex. Sess.
2009–2010, ch. 28, § 50.) Effective
September 28, 2010, the Legislature again amended section 4019. (Stats. 2010, ch. 426, §§ 1, 2, 5.) Subdivisions (b) and (g) restored the
one-for-two presentence conduct credit calculation that had been in effect
prior to the January 25, 2010, amendment.
Most recently, the Legislature
amended section 4019 to provide for up to two days credit for each four-day
period of confinement in local custody.
(§ 4019, subds. (b)
& (c).) This scheme reflects the
Legislature’s intent that if all days are earned under section 4019, a term of
four days will be deemed to have been served for every two days spent in actual
custody. (§ 4019, subd. (f).)
This version of section 4019 became operative on October 1, 2011. (Stats. 2011, ch. 39, § 53.)
Defendant contends that applying the
current version of section 4019 to defendants whose offenses were committed
after October 1, 2011, but not to those, such as defendant, who were sentenced
after October 1, 2011 for crimes committed before October 1, 2011, violates
In People v. Brown (2012) 54 Cal.4th 314 (Brown), the California Supreme Court addressed contentions that the
version of section 4019 effective on January 25, 2010, must be held to apply
retroactively, in part because prospective application would violate the equal
protection clauses of the state and federal Constitutions. The court stated:
“The concept of equal protection
recognizes that persons who are similarly situated with respect to a law’s
legitimate purposes must be treated equally.
[Citation.] Accordingly, ‘“[t]he
first prerequisite to a meritorious claim under the equal protection clause is
a showing that the state has adopted a classification that affects two or more
similarly situated groups in an unequal manner.â€â€™ [Citation.]
‘This initial inquiry is not whether persons are similarly situated for
all purposes, but “whether they are similarly situated for purposes of the law
challenged.â€â€™ [Citation.]
“. . . [T]he important correctional
purposes of a statute authorizing incentives for good behavior [citation] are
not served by rewarding prisoners who served time before the incentives took
effect and thus could not have modified their behavior in response. That
prisoners who served time before and after former section 4019 took effect are
not similarly situated necessarily follows.†(Brown,
supra, 54 Cal.4th at pp. 328–329,
italics added.)
The court rejected the argument that
its decision in People v. Sage (1980)
26 Cal.3d 498 (Sage) required a
contrary conclusion. (
The version of section 4019 at issue in Sage authorized presentence conduct credit for misdemeanants who
later served their sentence in county jail, but not for felons who ultimately
were sentenced to state prison. The
violative of equal protection, as it found no “rational basis for, much less a
compelling state interest in, denying presentence conduct credit toâ€
felons. (Sage, at p. 508.)
Brown
acknowledged that one practical effect of Sage
“was to extend presentence conduct credits retroactively to detainees who did
not expect to receive them, and whose good behavior therefore could not have
been motivated by the prospect of receiving them.†(Brown,
supra, 54 Cal.4th at p. 329.) Nevertheless, it declined to read
conclusion “that prisoners serving time before and after incentives are
announced are not similarly situated.†(
explained: “The unsigned lead opinion
‘by the Court’ in Sage does not
mention the argument that conduct credits, by their nature, must apply
prospectively to motivate good behavior.
A brief allusion to that argument in a concurring and dissenting opinion
[citation] went unacknowledged and unanswered in the lead opinion. As cases are not authority for propositions
not considered [citation], we decline to read Sage for more than it expressly holds.†(Brown,
at p. 330.)
Finally, Brown rejected the notion the case before it was controlled by
the case on which defendant relies in this case. In Kapperman,
the court held that equal protection required retroactive application of a
statute granting credit to felons for time served in local custody before
sentencing and commitment to state prison, despite the fact that the statute
was expressly prospective. (
Brown found
regard to behavior, and thus does not entail the paradoxical consequences of
applying retroactively a statute intended to create incentives for good behavior. Kapperman
does not hold or suggest that prisoners serving time before and after the
effective date of a statute authorizing conduct
credits are similarly situated.†(
In People v. Ellis, supra,
207 Cal.App.4th 1546, the court found Brown’s
equal protection reasoning applicable to the current version of section 4019.
v. Ellis, supra, at p.
1552.) We agree with that court’s
analysis. Accordingly, we reject
defendant’s claim that he is entitled to additional conduct credits at the rate
provided for by current section 4019.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
McKINSTER
J.
We concur:
HOLLENHORST
Acting
P. J.
CODRINGTON
J.
name="_ftn1" title=""> [1] All further statutory citations refer to the
Penal Code unless another code is specified.
name="_ftn2" title=""> [2] People
v. Scott (1994) 9 Cal.4th 331.
